94 Ala. 606 | Ala. | 1891
— To a recovery on a bill or promissory note it is only necessary for the plaintiff to prove such of the indorsements as carry the title into him. All others may be pretermitted in averment, and, of course, in the evidence. 2 Greenl. Ev. § 166. If the paper, though indorsed and transferred, gets back into the hands of the payee, the presumption is that he has paid the sum evidenced by it to the indorsee, and thus become prima facie again the legal owner. — Dugon v. United States, 3 Wheat. 172 ; Herndon v. Taylor, 6 Ala. 461; Tuskaloosa Cotton Seed Oil Co. v. Perry, 85 Ala. 158. And upon such title he may maintain an action on the note against the maker. — Pinney v. McGregor, 102 Mass. 186; Oil Co. v. Perry, supra. It results necessarily from these principles, that where the note is in the possession of the payee, the law converts that possession into a prima facie legal title, upon which suit may be prosecuted, wholly regardless of the condition of the paper as to indorsements, and puts the onus of showing the absence of the title on the defendant. Such indorsements, of themselves, do not stand in the way of recovery, and, whether they import a final indorsement back to the payee or not, they need not be alleged or proved. In the case at. bar, therefore, it was no part of plaintiff’s case to set forth in the complaint, or establish by the evidence, the indorsements found on the back of-the paper; its title to maintain the' suit did not depend upon them, and the right to recover was not in any degree, certainly in the absence of a
Upon these rulings of the court being made, and put on the ground that no plea denying plaintiff’s title had been interposed, the defendant, after pleas had been filed and the issues made up. and after the time for pleading had elapsed, and indeed in the midst of the trial, asked leave to file such special plea duly verified. We are clear to the conclusion, that at this stage of the proceeding it was in the discretion of the court to allow or refuse to allow the filing of this new and additional plea, and that its action in refusing the leave prayed can not work a reversal of the judgment. — Jones v. Ritter, 56 Ala. 270.
Affirmed.